C-546/19: AG opinion on the interpretation of the Return Directive and ‘entry bans’

Wednesday, February 10, 2021

On 10 February 2021, AG Pikamäe published his opinion in BZ v Westerwaldkreis C-546/19 concerning a reference made by the Federal Administrative Court of Germany relating to the 'entry ban' provided for by the Return Directive (Directive 2008/115). 
AG Pikamäe notes that, in essence, the CJEU is firstly asked whether the Return Directive applies only to entry bans imposed due to a breach of migration rules and whether entry bans which fall outside that category, in particular those designed to protect public policy and public security in the Member States, remain within the jurisdiction of the Member States. 
AG Pikamäe opined that the competency to impose entry bans on persons who constitute a threat remains with the Member State, provided that they are residing outside the territory of the Member State concerned at the time when such bans are issued. Nonetheless, the AG expressed the view that Member States are obliged to comply with the harmonised rules set out in the Return Directive, particularly the obligation to adopt a return decision, when providing for entry bans on persons constituting a threat to public policy, public security or national security, if the persons in question are already in the territory. The AG suggested that the element that distinguishes the entry bans falling within the scope of the Return Directive from those based solely in national law, is the need to return a third country national rather than the grounds for adopting entry bans.
In its second question, the referring court seeks to ascertain whether the Return Directive precludes the continuation of a ban on entry and stay imposed on a third-country national along with a deportation order, adopted on the basis of a previous criminal conviction, where the return decision has been withdrawn.
Pikamäe relied on the CJEU’s judgment in Ouhrami in which he considered that the CJEU, in effect, implied that the return decision is a necessary precondition for the validity of an entry ban. Pikamäe further pointed to the logic and spirit of the Directive. The former being the obligation arising from the Directive to issue a return decision once it is established that a third-country national is illegally residing its territory. Pikamäe explained that as there are no exceptions in this regard, it is incumbent on Member States to issue a return decision, irrespective of whether the return decision is a constituent element of the unlawfulness of the residence or has a purely declaratory value. AG Pikamäe recalled that Article 6(1) of the Directive is aimed at reducing the ‘grey areas’ of irregular immigration, preventing exploitation of unlawful residents and improving legal certainty. As such, he opines that the continuation of an entry ban would blatantly disregard these aims. 
AG Pikamäe concluded his opinion by reiterating his view that bans on entry and stay, imposed against a third country national at the same time as an expulsion order adopted on the basis of a previous criminal conviction, fall within the scope of application of the Return Directive. Further, he expressed the view that the Return Directive precludes the maintenance in force of a ban on entry and stay, issued against a national of a third country at the same time as an expulsion order, adopted on the basis of a previous criminal conviction, when the return order has been withdrawn. This also applies if the deportation order has become final.

Based on an unofficial translation by the EWLU team.

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